National Labor Relations Board Primed to Overrule Two More Bush-Era Decisions

Recently, a divided National Labor Relations Board, led by Chairman Wilma Liebman and Obama appointees Craig Becker and Mark Pearce, granted review in two sets of cases that question when a union's support can be challenged. Specifically, the cases challenge the board's prior positions regarding the voluntary recognition and successor bar doctrines.

Voluntary Recognition Bar Doctrine

The first group of cases aim to overrule the board's 2007 decision in Dana Corp., 351 NLRB 434. In Dana Corp., the board held that when an employer agrees to voluntarily recognize a union based on a majority of signed union authorization cards, the employees have a right, within 45 days, to file a petition to decertify the union or in support of a rival union. By revisiting this precedent, the NLRB will likely reinstate the amorphous rule that employees can not challenge a union's status for a "reasonable period" of time following voluntary recognition. Thus, employees will lose the right to challenge a union's status and vote in a secret ballot election until a "reasonable period" of time has passed.

Successor Bar Doctrine

The second set of cases seek to overrule the board's 2002 decision in MV Transportation, 377 NLRB 770. In MV Transportation, the board held that an employer, its employees or a rival union may challenge a successor's obligation to recognize and bargain with an incumbent union. The NLRB will likely re-establish the pre-2002 pro-union successor bar rule. Under the old rule, if a successor employed a majority of predecessor employees represented by a union, then the union's majority status could not be challenged for a reasonable period to allow the new company and union to have time to negotiate.

Take Away

The Obama administration is holding true to its promise to usher in a new pro-union agenda. While the Employee Free Choice Act remains a lame duck, the NLRB will continue to overrule employer-friendly Bush-era precedents. Stay tuned for more updates, as other pro-employer rulings will surely come under fire.